Revocation of Fraudulent Act

A lawsuit for the revocation of a fraudulent act in this case filed one year after the plaintiff became aware of the grounds for revocation is unlawful as it was filed after the exclusion period expires.

Article 30 of the National Tax Collection Act Revocation

2014 Gohap70613 Revocation of Fraudulent Act

Korea

AAA

May 13, 2016

July 1, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The sales contract concluded on May 18, 2012 between the defendant and the lowestA with respect to the real estate listed in the separate sheet shall be revoked within the limit of KRW 830,00,000, and the defendant shall pay to the plaintiff 830,000,000 with 5% interest per annum from the day following the date the judgment of this case becomes final to the day of full payment.

1. Basic facts

A. The Plaintiff’s taxation claim against the leastA

1) The trade name “B” from April 1, 2008 to “○○○○○○○○○○ 927-9” to “B”.

A person who is registered as a business and conducts real estate business, new construction and sale business, etc., and the defendant is the wife of the largestA.

2) On February 9, 2010, LA newly constructed ○○○○ (hereinafter referred to as “○○”) on the above land, ○○ (hereinafter referred to as “○○”) of the 3rd ground level above the above land, and completed the registration of initial ownership.

3) From September 6, 2011 to May 1, 2013, the head of the ○○ Tax Office under the Plaintiff-affiliated Tax Office shall:

The value-added tax and global income tax, as set out in Nos. 1 through 6, were paid by the highestA, but the value-added tax and global income tax in arrears until September 18, 2014, were total of 884,674,820 won (hereinafter “instant tax claim”).

(b) Trust contracts and registrations between the leastA and the ○○ Trust Company;

On May 14, 2010, LAA entered into a security trust agreement for ○○ Trust Co., Ltd. (hereinafter “instant trust company”) with respect to ○○○○ Trust Co., Ltd. (hereinafter “instant trust company”), including real estate listed in attached Tables 1 and 2, and completed the registration of ownership transfer in the instant trust company on May 19, 2010.

(c) disposals by the leastA.

On May 18, 2012, the largestA entered into a sales contract (hereinafter “instant sales contract”) with the Defendant on the real estate listed in the separate sheet (hereinafter “instant real estate”) on May 18, 2012 while the Plaintiff was liable to pay value-added tax and global income tax, and completed the registration of ownership transfer on May 30, 2012.

[Ground of recognition] Facts without dispute, Gap's 1 to 10, 12 evidence (including branch numbers, hereinafter the same) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The LAE concluded a sales contract with the Defendant, the wife, on May 18, 2012, when it was liable to pay the Plaintiff the total amount of value-added tax and global income tax of KRW 884,674,820, and completed the registration of ownership transfer on the ground of sale and purchase to the Defendant on May 30, 2012. Since the LAA’s act of disposal of property exceeds the positive property, it is presumed that the fraudulent act detrimental to the obligee, and the Defendant’s bad faith is presumed to be harmful to the obligee. Accordingly, the instant sales contract should be revoked by fraudulent act. Accordingly, the Defendant is obligated to implement the registration procedure for cancellation of ownership transfer registration in the name of the Defendant on the instant real property as restitution following the cancellation of fraudulent act, and since real return of original property becomes impossible as the right to collateral security was established thereafter, the Defendant is obligated to pay the amount equivalent to the market value of the instant real property to the Plaintiff as compensation for damages.

B. The defendant's main defense

On October 11, 2013, the Plaintiff filed a lawsuit seeking revocation of a fraudulent act against NewCC at the latest.

It should be deemed that the instant sales contract was aware that it constitutes a fraudulent act. Accordingly, the instant lawsuit filed after the lapse of one year, the exclusion period, is unlawful.

3. Determination on this safety defense

A. Under Article 406(2) of the Civil Act, a lawsuit for revocation of a fraudulent act shall be filed within one year from the date when the obligee becomes aware of the cause for revocation and five years from the date when the obligee becomes aware of the cause for revocation. Here, “the date when the obligee becomes aware of the cause for revocation” means the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act with the knowledge that the obligee would prejudice the obligee, so it is insufficient to simply say that the obligor was aware of the fact that the obligor committed the act of disposal of the property, and that the juristic act is an act prejudicial to the obligee. In other words, it is necessary to inform the obligor of the fact that the legal act was insufficient to satisfy the claim completely due to the lack of joint security of the claim or the lack of joint security that has already been insufficient, and further, the obligor had the intent to cause harm (see, e.g., Supreme Court Decision 2011Da82384, Jan. 12, 2012).

B. Comprehensively taking account of the respective descriptions of evidence Nos. 1 and 2 and the overall purport of the pleadings, the Plaintiff’s ○○ Tax Office, as of February 14, 2013, completed the registration of seizure on the grounds of the delinquency in payment of value-added tax on February 12, 2013 with respect to ○○○○○, among the instant real estate, on the grounds of the instant real estate on February 14, 2013; ② the Plaintiff received the Defendant’s transcript on June 13 and July 26, 2013 and the Defendant’s family relation certificate on ○○, E-E (PA’s wife); ③ the Plaintiff filed a lawsuit against the Plaintiff on October 11, 2013 on the ground that the Plaintiff entered into a fraudulent act with the ○○○ on the ground that the Plaintiff’s revocation of the fraudulent act against the Plaintiff on May 17, 2012 and ○○ on June 15, 2015.

According to the above facts, the Plaintiff sold the instant real estate to the Defendant, the wife of which around October 11, 2013 filed a lawsuit seeking revocation of a fraudulent act against the NewCC at the latest, and became unable to fully satisfy the claims due to the lack of the creditors’ joint security of claims or the lack of joint security already in a short state, and it is reasonable to view that the Plaintiff was aware that the Plaintiff entered into the instant sales contract with the Defendant to be exempted from the payment of value-added tax and global income tax.

Therefore, the plaintiff's lawsuit of revocation of the fraudulent act of this case filed on October 16, 2014 after the lapse of the exclusion period is illegal. Thus, the defendant's objection to this point is with merit.

3. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices.